How The Fracking Mess Is About To Make The Mortgage Mess Worse

One fact ought to tell you all you need to know about the risks faced by homeowners signing leases for natural gas drilling on their property: Wells Fargo & Company, both the largest home mortgage lender in the United States and a major lender to the country's second largest producer of natural gas, Chesapeake Energy Corp., refuses to make home loans for properties encumbered with natural gas drilling leases.

This salient fact comes from an article (PDF) written for the New York State Bar Association Journal by attorney Elisabeth N. Radow. Written in the form of an even-tempered legal brief, Radow relates one astounding finding after another. Perhaps most relevant to homeowners who either have signed drilling leases or who may be asked to sign them in the future is this: "Signing a gas lease without lender consent is likely to constitute a mortgage default." You read that right. Default.

Her conclusion stems from something which most homeowners probably don't even realize: Standard residential mortgages prohibit:
 
the use, disposal, storage, or release of any hazardous substances on, under or about the mortgaged property. In mortgages, hazardous substances include gasoline, kerosene, other flammable or toxic petroleum products, volatile solvents, toxic pesticides and herbicides, materials containing asbestos or formaldehyde and radioactive materials.
 
Of course, homeowners often have and use some of the above-mentioned materials. But the lenders may invoke their rights should industrial-sized activities such as hydraulic fracturing or fracking occur. Fracking, a process often associated with natural gas drilling, utilizes a cocktail of hazardous chemicals mixed with water. Millions of gallons of the mixture are pumped under high pressure into each well to fracture deep shale formations and thereby release the embedded natural gas found there. Beyond this, homeowners with mortgages are prohibited from violating any environmental laws, federal, state or local. Can they always count on drillers to observe those laws?

Now, here's how the fracking mess intersects with the ongoing mortgage mess. Most mortgages are sold into the secondary market to federal lenders such as Fannie Mae and Freddie Mac, and some are packaged in groups as mortgaged-back securities and sold to investors. The mortgage lenders make representations to buyers in the secondary market that the mortgages they are selling conform to widely accepted standards that prohibit the kinds of activities listed above. In Radow's opinion it is likely that many residential mortgages with natural gas leases on the underlying properties have already made there way onto the books of Fannie Mae and Freddie Mac or into investor portfolios. And, with shale gas found across many states, there are likely to be many more compromised mortgages sold into the secondary market in the future.

None of this might matter if the drilling and production did not affect the value of the underlying property. Some of those who signed leases for drilling so-called coal-bed methane in Colorado and then experienced problems ended up with losses on their homes that reached 85 percent. In some instances, property owners merely situated near drilling and production have suffered. A Pennsylvania couple was recently denied a new mortgage on their home and hobby farm because according to the lender "gas wells and other structures in nearby lots...can significantly degrade a property's value." The owners came to the logical conclusion that if they cannot refinance their own home, no potential buyer would likely be able to get a mortgage to purchase it should the couple ever want to sell.

Others who've had their water supply contaminated but could not prove it was due to nearby natural gas drilling are facing a wipeout since their homes are now worth far less than the mortgages on them. Some of those people will simply end up walking away in order to protect the health of their families.

But why not turn to one's insurance company to pay for damage to one's property? It turns out that homeowners insurance almost always excludes damage from industrial operations on one's residential property, Radow writes. And, that's what natural gas drilling is, an industrial operation. Even for those who escape the problems of water contamination and human and animal health effects, there remains the ever present possibility of damaging explosions and fires from drilling and production operations. Homeowners insurance won't pay for that either.

Surely, the drilling companies are responsible for explosions and fires linked to their operations. Unlike water contamination which usually an underground phenomenon and often difficult to prove, it should be obvious that the companies are responsible for damage from explosions and fires caused by their actions. Don't count on it, Radow seems to say. In such circumstances, homeowners may have to sue for damages and even if they win, they may not get paid for all damages since the natural gas drillers admit in their regulatory filings that they may not carry enough insurance to pay for damage due to such mishaps.

One more twist has been the sale by a major homebuilder of entire subdivisions of new homes stripped of their mineral rights. Obviously, the homebuilder hopes to make a second fortune by leasing those rights should they become valuable. Naturally, the newly aware homeowners worry about the possible loss of value in their homes should that come to pass. It's no wonder. Homebuilder D.R. Horton's energy subsidiary has been given “the perpetual right to drill, mine, explore … and remove any of the subsurface resources on or from the property by any means whatsoever."

Now, we come to who will ultimately pay for any cleanup on abandoned, underinsured properties contaminated and otherwise made uninhabitable or at least, undersirable. Perhaps you've already figured out that it will be in almost all cases U.S. taxpayers who now own the two largest mortgage companies in the country, Fannie Mae and Freddie Mac. When these mortgage giants finally take possession of all the contaminated and impaired properties, they will be obliged to clean them up and simultaneously bear the losses in the value of the mortgages issued on those properties.

In this way, the average citizen will be subsidizing the natural gas industry by bearing the costs associated with devalued property and hazardous waste cleanup. When all of this starts happening in a big way, you can count on those in charge saying that nobody saw it coming.